Birchall v The King - [2025] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA840/2024
[2025] NZCA 566

BETWEEN	JACOB KENNETH BIRCHALL Appellant
AND	THE KING Respondent

Hearing:	4 September 2025
Court:	Thomas, Brewer and Isac JJ
Counsel:	E Huda for Appellant O A Jessop Boivin and K B Bell for Respondent
Judgment:	29 October 2025 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Birchall pleaded guilty to a representative charge of importing methamphetamine, a representative charge of offering to supply methamphetamine and a charge of importing MDMA. On 4 December 2024, Judge Kellar sentenced Mr Birchall to 11 years’ imprisonment.[1]
[1]R v Birchall [2024] NZDC 29313 [sentencing decision] at [48].
Mr Birchall now appeals his sentence. The sole ground of appeal is that the Judge should have given Mr Birchall a credit of 25 per cent for his pleas of guilty rather than the awarded discount of 15 per cent.
We must allow Mr Birchall’s appeal if we are satisfied that there was an error in the sentence such that a different sentence should be imposed.[2] Our focus is necessarily on the end sentence.[3] If it is manifestly excessive then we must allow the appeal.[4]

Background

[2]Criminal Procedure Act 2011, s 250(2).

[3]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

[4]At [36]. See also Vallance v R [2025] NZCA 304 at [61].

We take the factual background from the Judge’s sentencing notes:[5]
[5]Sentencing decision, above n 1.
[6]       The facts can be relatively shortly stated. You were an associate of the Head Hunters. You were relatively young at the time, just 26 years of age, and your co-defendant, Ms Pomare, is your partner. Mr Murray, who is going to trial, is a senior patched member of the Head Hunters.
[7]       In terms of the importations, between 22 January and 26 January 2024 you and the others communicated with an overseas party known as Lebara to arrange importation of controlled drugs. You communicated with Lebara through an encrypted app known as Telegram. The primary device which was used was yours.
[8]       On 22 January 2024, a conversation took place over the app in which it was said, and I quote:
Greetings to our Dutch brother from the Head Hunters MC Lebara L3B4R4. This is our new profile as we don’t want to trade under Head Hunters MC anymore in case they ever find this burner phone. We tried to transfer your funds but every time we try it has to be verified by photo ID etc. Have you any suggestions on how we can give you bitcoin without revealing our identity. We have 5,000.
[9]       There were conversations regarding payment options, including by Bitcoin and cryptocurrency. Packages would be sent with a GPS tracker so the supplier could track the location of the package. Other messages indicated that you had previously imported drugs from this supplier. There was this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Birchall v The King

Details

AGLC: Birchall v The King [2025] NZCA 566
Case: [2025] NZCA 566
Decision Date: 29 October 2025 at 9.30 am

CaseChat Overview and Summary

The appellant, Jacob Kenneth Birchall, appealed against his sentence for importing methamphetamine, offering to supply methamphetamine, and importing MDMA. He was sentenced to 11 years' imprisonment by Judge Kellar. The sole ground for appeal was that Birchall should have received a 25% discount for his pleas of guilty, rather than the 15% discount awarded. The Court of Appeal, comprising Thomas, Brewer, and Isac JJ, reviewed the case to determine if the appeal should be allowed based on an error in the sentence.

The legal issue before the Court was whether the sentence imposed by Judge Kellar was manifestly excessive or whether there was an error in the sentence that required a different outcome. The Court needed to determine if the Judge's discount for the pleas of guilty was appropriate, considering the circumstances surrounding Birchall's entry of pleas.

The Court found that the Judge's decision to award a 15% discount for Birchall's pleas of guilty was within the range of available discounts. The Court noted that a discount for entering pleas of guilty is an evaluative decision and should consider all circumstances in which the plea was entered, including timing, the strength of the prosecution case, and any benefits from a plea arrangement. The Court concluded that the pleas were not entered at the first reasonable opportunity, given the seriousness of the charges and the timing of the plea negotiations. However, the Court found that the overall sentence of 11 years' imprisonment was not manifestly excessive.

The Court dismissed the appeal and upheld the sentence imposed by Judge Kellar. The Court noted that without the Judge's rounding down of the calculation, the sentence would have been four-and-a-half months longer.

Orders